Allene R.1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 5, 2016

0120140762 (E.E.O.C. Oct. 5, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Allene R.1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120140762
Hearing No. 470-2011-00066X
Agency No. 200J06102010102242

DECISION

Complainant filed an appeal from the Agency’s November 18, 2013, final order concerning
her equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §
2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Intensive
Outpatient Program (IOP) Coordinator-Psychologist, in the Mental Health Services at the
Agency’s facility located in Fort Wayne, Indiana. On September 10, 2010, Complainant filed
an EEO complaint alleging that the Agency discriminated against her on the bases2 of sex
(female) and in reprisal for prior protected EEO activity when: (1) on February 10, 2010, she
did not receive a cash award;3 (2) on March 15, 18, and 23, 2010, Complainant’s supervisor
(S1) denied her overtime/compensatory time; and (3) she was subjected to a hostile work
environment in the following manner: (a) between March 30, 2009 and April 27, 2009, she
was never greeted by S1; (b) from March 30, 2009 through June 2009, she was forced to share
an office with another employee (C1); (c) from March 30, 2009 through May 5, 2009, she was

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 Prior to the hearing, Complainant withdrew the basis of national origin (Serbian) from her
complaint.
3 The sole basis for this claim is sex.
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not provided with a key to her office and had to wait in the hallway for someone to open her
door; (d) from March 30, 2009 through present, S1 incorrectly reported her workload to upper
management; (e) from March 30, 2009 to present, management has not hired full-time
employees for her clinic and failed to provide rooms for her to treat patients;4 (f) on or about
April 16, 2009, she was informed by an unidentified coworker that S1 did not want her there;
(g) from April 27, 2009 through present, she was never given any guidelines, job description,
training, staff, or information on how to establish the IOP; (h) on or about January 2010, S1
directed staff to withhold information from her related to her resignation; (i) on February 10,
2010, due to her initial poor performance evaluation by S1, she did not receive a cash award;
(j) on or about March 2010, S1 tried to undermine the IOP by insuring she did not receive
referrals from physicians; (k) on March 12, 2010, S1 wanted her to respond to a report of
contact made against her by a coworker; (l) on March 15, 18, and 23, 2010, she was denied
overtime/compensatory time; (m) on April 8, 2010, she was verbally reprimanded by S1 for
scheduling a few patient sessions; (n) on May 21, 2010, S1 impeded her ability to have a co-
worker run a group clinic which resulted in the receipt of inappropriate referrals to her
substance abuse clinic; and (o) on or about June/July 2010, S1 provided negative/false
information to another Agency facility prior to her decision to transfer.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on May 10, 11 2012, November 29, and 30 2012. On September 30,
2013, the AJ issued his decision which concluded that Complainant failed to prove
discrimination or harassment as alleged. The Agency subsequently issued a final order
adopting the AJ’s decision.

CONTENTIONS ON APPEAL

Complainant asserts that the AJ erred: (1) by deciding, contrary to the evidence that S1 did not
learn of complainant's protected EEO activity until he was contacted by the EEO investigator;
(2) by not considering any facts showing that Complainant was treated differently than her co-
workers; (3) by not considering facts showing that Complainant was the victim of a scheme
designed to ensure her failure; (4) by deciding Complainant's claim that S1 sent her
inappropriate referrals without considering the facts relevant to that claim; and (5) by reaching
unsupportable conclusions regarding the suitability of complainant's requests for compensatory
time and/or overtime.
ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

4 Complainant withdrew this claim prior to the hearing.
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(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Upon review of the record, we find insufficient evidence to show that the AJ’s decision is not
supported by substantial evidence in the record. Whether or not Complainant’s comparator
evidence was sufficient to establish a prima facie case of disparate treatment, the record
supports the AJ’s conclusion that Complainant failed to present sufficient evidence that the
employment actions at issue were motivated by discriminatory or retaliatory animus.5

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final action which adopts the AJ’s
decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,

5 We note that the AJ made credibility findings in his decision.
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Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

October 5, 2016
Date